On impotent landlords and disability.

There are a couple of articles in the latest Journal of Housing Law (Vol 11, issue 1 2008) on Malcolm v London Borough of Lewisham and the effect of the Disability Discrimination Act 1995 on possession orders. I’d say the articles are of varying interest. (My previous posts on Malcolm v Lewisham are here and here)

At the lesser end of the spectrum, Simon Braun contributes a cry of anguish over the supposed impotence of landlords in the face of Malcolm. The article repeats the idees recu that ‘the consequences of the DDA are to give total immunity to the tenant’ and that the link between disability and breach of tenancy ‘need only be very casual’. I’ve said this before and, until proven wrong, I may well say it again, but neither the immunity nor the casualness of the link are the case. Granted, ‘related’ is a lesser hurdle than ‘causal’, but it is not a negligible requirement either. A wheelchair user facing a possession claim for rent arrears? A visually impaired person illegally sub-letting? A person suffering from schizophrenia facing possession for under-occupation? Why would the DDA prevent possession orders in these cases? Further, we have yet to see whether Manchester CC v Romano [2004] EWCA Civ 834 or Malcolm is favoured in possession claims where the Court has discretion.

Breach of DDA as a factor in reasonableness is quite different to simple unlawfulness of a possession order, as Justin Bates points out in the considerably more interesting second article.

Justin Bates of Arden Chambers gives an overview of Manchester CC v Romano and Malcolm with which I largely agree (not least because I had come to some similar conclusions at the time of the judgment in Malcolm) and then turns to the consistency between Romano and Malcolm and the odd effects of Malcolm, for instance that the outcome might have been different had Lewisham proceeded via Notice Seeking Possession for breach of Ground 1 HA 1985, rather than relying on end of secure tenancy by operation of law and Notice to Quit, as this would likely have followed Romano.

Neither Romano nor Malcolm fully addressed justification under the DDA 1995, Justin suggests. S 24(3)(b) provides that discrimination may be justified if the disabled person is ‘incapable of entering into an enforceable agreement’ and arguably that was the case for both Romano and Malcolm as by their own cases they were incapable of being bound by their tenancy agreements. This is quite seductive, but I’m not sure it works.

The full s.24(3)(b) reads

“in any case, the disabled person is incapable of entering into an enforceable agreement, or of giving an informed consent, and for that reason the treatment is reasonable in that case;”

The issue is why incapacity to enter an enforceable agreement is the criterea. For an eviction, there is no entry into a contract at issue, as the tenancy agreement was entered into at some time in the past and capacity to enter that contract is not at stake.

It is at least strongly arguable that 24(3)(b) is limited in its reference to s.22(1)(2) and (4) – the sections that deal with disposal of premises to disabled people, i.e. entering an enforceable contract. The requirement is that the treatment be reasonable in that case, for this reason (lack of capacity), which must mean that the entry into a contract is the crux of the treatment. If this is not the case, s 24(3)(b) would mean that it would be justified to discriminate in a whole range of ways against those lacking capacity at this time, because it is reasonable in some undefined way to do so, offering a potential blanket justification for discrimination against the mentally ill (or otherwise incapable). As s 24(3)(a) is quite specific by comparison, this seems unlikely.

In any case, if this were entered as a justification, one would expect the claimant to have complied with CPR Rule 21 on litigation friends.

Justin Bates then turns to establishing discrimination. He cites Richmond Court (Swansea) v Williams [2006] EWCA Civ 1719, which held that, because the freeholder would have refused any tenant permission to install a stair lift regardless of disability, there was no discrimination against the disabled appellant leaseholder in refusing her permission. Justin suggests that the Court overlooked the significance of Richmond. If Richmond had been followed, because an NTQ would have been served by Lewisham on any tenant who parted with possession, there was arguably no discrimination against Mr Malcolm.

I can’t follow this line of argument. I don’t think it is that the Court overlooks the significance of Richmond. It is rather that this is no longer the means of establishing discrimination. I say this despite Richmond post-dating the Court of Appeal judgment in Clark v Novacold Limited that is key here.

It is not simply a matter of comparing the treatment of a disabled person to the treatment of an able bodied person. Indeed the Richmond example shows something of why. It is unlikely that an able bodied person would seek to install a stair lift, such that a blanket refusal is not non-discrimination but rather indirect discrimination.

The judgment in Malcolm deals with this at some length at paras 96-104. At para 100 in Malcolm, Lady Justice Arden adopts the approach of Clark v Novacold Limited in employment law, by which the Court considers itself bound, and states:

It follows from the example of the guide dog that it does not matter that Lewisham would have treated every tenant who sublet in the same way, even if the tenant had no disability.

The example of the guide dog being, in my view, exactly comparable to the approach in Richmond as Justin sets it out. (Granted, I have trouble imagining how the Novacold approach would have worked in Richmond.)

There certainly are many issues left over from Malcolm, not least concerning its compatibility with Romano and which should now be preferred in the case of a secure tenancy. I do wonder though, whether the primary issue is between perceived practicality and a strict interpretation of statute through the lens of established employment case law. For instance, in terms of statute, I think that unlawfulness of a possession order makes much more sense that a fudged incorporation of discrimination into a HA 1985 or 1988 consideration of reasonableness. The latter somehow smuggles in an amendment of the Housing Acts, which cannot be the case.

Malcolm is headed to the Lords and frankly, I don’t think anyone expects the Lords to leave it alone, so there is no doubt more to come. As Romano/Malcolm is key to a case I’m currently running, I’m watching with bated (sorry) breath.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Possession and tagged , , , .

5 Comments

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  2. I met some GLS lawyers who work for the DWP on DDA issues last night. They told me that the DWP was aware of the difficulties that the DDA was causing and were actively considering amending the justification provisions so as to provide for a broad “one may discriminate if it is objectively reasonable to do so” defence, rather than the limited categories that currently exist.

    However, turning to the law as it currently stands. I’ve thought more about the s.24(3)(b) argument. I think it will still be arguable, albeit with a minor modification from the original article.

    Whilst it may not work in relation to the original tenancy agreement, (the phrase “is incapable of entering into…” suggests the formation of an agreement which post-dates the emergence of the disability) one could still argue that the inability to enter into an agreement to reduce the rent arrears (something landlords are required to attempt under the Rent Arrears protocol) would be sufficient to bring s.24(3)(b) into play. If the tenant cannot make an agreement to reduce their arrears, then the possession proceedings must be justified.

    CPR 21 wouldn’t necessarily be engaged. Obviously one would have to consider each case on its own facts, but I’ve had plenty of clients who have been severely depressed, such as to bring them inside the scope of the DDA, but who were capable of giving instructions.

    I don’t think you can limit s.24(3)(b) to the ss.22(1)(2) and (4) grounds though. The phrase “in any case” in s.24(3)(b) is very broad. If the draftsman had meant to limit the use of s.24(3)(b), (s)he would have had to have used a different form of words.

    I do see the Richmond case as significant. I take your point that an able-bodied person would be unlikely to request the installation of a stairlift, but the freeholder in Richmond prohibited all works to the common parts. Stairlifts / installation of art works / notice board / more lighting etc. An able-bodied person might well have asked for some such installation and they too would have been refused permission.It is that blanket refusal which constitutes the non-discrimination.

    What frustrated me the most from the Malcolm case is that there seemed to be no recognition of the implications of the decision, and these very issues were – seemingly – not raised. The report suggests that some truly bizarre arguments were advanced (such as the DDA not applying once security of tenure had been lost). I just hope that their Lordships are able to make a better go of it, although I suspect that we’re going to get another Brent LBC v Burrows.

  3. J, glad for your comment – I was hoping to lure you out.

    I’m more persuaded by the ‘agreement on rent arrears as contract’ argument enabling s.24(3)(b) to bite. I would guess that the same might apply to a behaviour agreement, although how far either of these could be construed as contracts is surely arguable. Neither of these would apply in the case of Mr Malcolm, though.

    I would consider that if one was arguing incapacity to enter a contract, CPR 21 is definitely engaged. While depression might not engage CPR 21, but fall under the DDA, I doubt it would count as incapacity to enter…

    In regard to Richmond, I’ve had a rethink as well. As suggested above, the real issue is that of the correct comparator for establishing discrimination. That is what paras 96-104 are about and also 133 and 154-159. Novacold means that the comparator is a person to whom the reason for the treatment does not apply (assuming that the relation between the disability and the reason has been established). Thus for example, a person who had not sublet, did not have rent arrears, had not caused nuisance etc..

    This is a decision that the Court of Appeal considers itself bound by. So the argument, via Richmond, that Lewisham would have claimed possession against anyone who had unlawfully sub-let cannot stand as ‘non-discrimination’ as there are plenty of Lewisham tenants to whom the reason for the treatment did not apply.

    Where Richmond may apply is outlined at para 158, where “the complainant’s treatment is of entirely general application” and the reason for the treatment is of general application – i.e where there is no possible comparator who would lack the reason for the treatment. But then the complainant cannot point to a disability related reason for the treatment. As noted at 159, this means the comparative test either doesn’t arise, or is fulfilled. Nothing in between.

    So I stand by Richmond falling foul of Novacold in virtually any possession case I can think of where the reason for seeking possession is related to the disability. And I suppose it means that housing people like me need to get a grip on some employment law.

    I hope that you are not right about another Brent v Burrows, but suspect you are. Legislation to introduce a general reasonableness justification also worries me a bit, but on the professional plus side, would surely be a litigator’s bonanza.

  4. It isn’t hard to lure me out. Discussions about housing law will usually do the trick. This is one of a handful of blogs that I read on a regular basis, and I think it’s excellent. You’ll understand though if client confidentially leads me to err on the side of silence at tims.

    Now, to return to your post.

    The appropriate comparison.
    We may well need to read our employment law cases, but it seems to me that it is the employment law which is causing the problem! One simply cannot compare employment law with housing law.

    A tenant under a secure or assured tenancy can only have an order for possession made against them where there has been proven default on their part (failure to pay rent, observe the tenancy conditions etc or part with possession). It is that very default which entitles the landlord to serve the NSP or NTQ and which, in turn, empowers the court to make a possession order.

    By contrast, an employer who wants to take action against an employee – disabled or not – needs no such default. If I am the MD of a company and I decide to sack Mr X because he has red hair, I can do so. It may prove a particularly expensive decision when ET proceedings are issued but I do have that power to act unilaterally and unreasonably. That is a power which simply isn’t open to a LA or RSL.

    It is that difference in power which – surely – is fatal to any comparison. In an employment case it will (often) be (relatively) easy to find the appropriate comparator. I imagine that, in organisations of a certain size, you could find a person to personify the appropriate comparator in the same office or department.

    By contrast, in housing law, it is almost impossible to find an appropriate comparator. A person who has not parted with possession simply cannot be subjected to valid possession proceedings on that basis. How can there be a valid comparison in these circumstances?

    I’m not sure I understand what you mean by “…the argument, via Richmond, that Lewisham would have claimed possession against anyone who had unlawfully sub-let cannot stand as ‘non-discrimination’ as there are plenty of Lewisham tenants to whom the reason for the treatment did not apply.” Once I understand it, I’ll try and decide if I agree or not!

    s.24(3)(b)
    There is something in this – certainly enough for a landlord to run a credible argument. My only though is whether there is a difference between a contract and an “enforceable agreement”, which is what s.24(3)(b) speaks of. This may be a distinction without a difference but, if the draftsman meant to say “contract” – why didn’t he just use that word?

    A bonanza
    I think it is awful that the only people who will actually benefit from the decision in Malcolm are lawyers. Clients – both landlords and tenants – need accessible law and certainty. It is outrageous that something as important as the protection of the disabled should be so complicated and unclear. From the tone of the comments on this blog, I suspect we’ll be able to agree on that!

  5. I think I’m convinced on the s.24(3)(b) argument – although whether an agreement on arrears or behaviour is ‘enforceable’ is arguable. Again, this wouldn’t have been an option in Malcolm – no agreement.

    As for the putative bonanza, we certainly agree.

    The question of the comparator to establish discrimination is a thorny and lengthy one. I think I will have another go at it in a follow up post later today or tomorrow, and respond to your comments in that.

    Thanks for the kind words.

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